Date: 20060308
Docket: IMM-1053-06
Citation: 2006 FC 306
Vancouver, British Columbia, Wednesday, the 8th day of March, 2006
Present: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
CHAN PVITER SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This order will deal with two applications (IMM-1053-06 and IMM-1054-06) for a stay of removal concerning the same Applicant. The matters were heard together at general sittings in Vancouver on March 6, 2006. A copy of these reasons is filed today in Court file IMM-1054-06 and applies there accordingly
[2] UPON motion by the Applicant, Chan Pviter Singh, for an order staying his removal scheduled for March 16, 2006;
[3] UPON reading and considering the materials contained in the records;
[4] UPON hearing submissions from counsel for the parties; and
[5] UPON considering the requirements of the test for a stay of removal set out in Toth v. Canada (Minister of Employment and Immigration) (1998), 6 Imm. L.R. (2d), 86 N.R. 302 (F.C.A.);
[6] The Applicant has filed an application for leave and for judicial review of his negative pre-removal risk assessment ("PRRA") dated January 31, 2006 (IMM-1054-06). The Applicant has also filed an application for leave and for judicial review of the negative decision dated February 1, 2006, concerning his application for permanent residence on humanitarian and compassionate ("H & C") grounds (IMM-1053-06).
[7] In the within motions for a stay of removal, the Applicant contends that the following serious issues are raised with respect to both underlying applications for judicial review:
1) that the PRRA Officer erred by ignoring the new evidence submitted by the Applicant and by assigning little probative value to the new evidence;
2) that the PRRA Officer erred by ignoring the independent documentary evidence;
3) that the PRRA Officer erred in finding that an internal flight alternative ("IFA") is available to the Applicant; and
4) that the PRRA Officer breached the principles of procedural fairness by not providing the Applicant with the opportunity for an oral hearing.
[8] The onus was on the Applicant to satisfy the PRRA Officer on the basis of the new evidence presented that he is at risk if returned to India, pursuant to the criteria set out in section 96 or section 97 of the Immigration and Refugee Protection Act, 2001 S.C. c. 27. In this case, I am satisfied that the PRRA Officer considered all the evidence before her, including the three new affidavits filed by the Applicant. I also find that it was open to the PRRA Officer, on the evidence, to conclude that an IFA is available to the Applicant. In my opinion, the Applicant is asking the Court to re-weigh the evidence that was before the PRRA Officer. Decisions of PRRA Officers are to be given significant deference. In my view, the PRRA Officer's decision is reasonable. In consequence, I find no serious issue in the underlying application.
[9] Further, I find no serious issue arises with respect to the Applicant's allegation of procedural unfairness. In my opinion, the PRRA Officer's decision not to afford the Applicant an oral hearing did not, in the circumstances of this case, constitute a breach of the principles of procedural fairness.
[10] In summary, I conclude that the Applicant has not raised a serious issue in the underlying applications for judicial review.
[11] Given that the requirements for a stay of removal are conjunctive, there is no need to consider the other prongs of the tri-partite test in Toth. In any event, I am satisfied that the Applicant has not established, in the circumstances, through clear and non-speculative evidence, that he would face irreparable harm if returned to India.
[12] In the circumstances, the balance of convenience favours the Respondent.
[13] For the above reasons, both applications for a stay of removal of the Applicant will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The application for a stay of removal related to the underlying application for leave and for judicial review of the Applicant's negative decision for permanent residence on humanitarian grounds (IMM-1053-06) is dismissed.
2. The application for a stay of removal related to the underlying application for leave and for judicial review of the Applicant's negative pre-removal risk assessment decision (IMM-1054-06) is dismissed.
(Sgd.) "Edmond P. Blanchard
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1053-06 & IMM-1054-06
STYLE OF CAUSE: CHAN PVITER SINGH
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 6, 2006
REASONS FOR ORDER AND ORDER: BLANCHARD J.
APPEARANCES:
Baldev S. Sandhu FOR APPLICANT
Scott Nesbitt FOR RESPONDENT
SOLICITORS OF RECORD:
Sandhu Law Office FOR APPLICANT
Surrey, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada